BINAPANI JENA Vs. CUTTACK MUNICIPAL CORPORATION

JUDGEMENT

(1.) This writ petition has been filed assailing the order dated 19.01.2007 (Annexure-5) passed by learned Civil Judge (Junior Division), 1st Court, Cuttack allowing an application filed by the plaintiff under Order XVIII Rule 1 CPC praying therein to direct the defendant Nos.2 and 3 to begin hearing of the suit.

(2.) Mr.D.P.Mohanty, learned counsel for the petitioners- the successors of defendant No.3-submits that Title Suit No.34 of 1987 has been filed by one Bhagabata Sahoo, (the husband of opposite party No.2 and father of opposite party Nos. 3 to 9 herein) before learned Munsif, 1st Court, Cuttack praying therein for declaration of easementary right over schedule C-2 property and defendant Nos.2 and 3 have acquired no title in pursuance of void resolution dated 27.07.1963 passed by defendant No.1. The plaintiff also prayed for mandatory and permanent injunction along with other consequential reliefs. After completion of the pleadings, the plaintiff filed a petition under Order XVIII Rule 1 CPC, praying inter alia to direct the defendant Nos.2 and 3 to begin hearing of the suit and adduce evidence ahead of plaintiff. In the said petition, the plaintiff claimed that the defendant Nos. 2 and 3 have set forth a claim of acquisition of title from the defendant No.1, namely, Cuttack Municipality (now Cuttack Municipal Corporation) by way of exchange and in the process, they have denied right of the plaintiff over the suit property. In that view of the matter, the defendant Nos.2 and 3 should prove their title first and they have right to begin in terms of Order XVIII Rule 1 CPC and they should be allowed to adduce evidence first ahead of plaintiff.

(3.) The defendant No.3 (late husband of the present petitioner No.1) filed objection contending inter alia that the petition is misconceived as the grounds on which the plaintiff seeks relief does not satisfy the requirements of Order XVIII Rule 1 CPC. In order to prove his easementary right, the plaintiff has to adduce evidence to show that the land belonged to defendant No.1 and by way of a resolution that Cuttack Municipality (as it then was) exchanged the same with defendant Nos. 2 and 3, but the plaintiff has acquired the easementary right over C-2 property. When neither the defendant No.2 nor the defendant No.3 has admitted the case of the plaintiff in their written statement, the prayer of the plaintiff cannot be granted. Learned Civil Judge, however, by misconstruing the provision of law, allowed the petition under Order XVIII Rule 1 CPC and passed the order under Annexure-5, which is not sustainable in the eyes of law. He, therefore, prays for setting aside the order under Annexure-5.